Response to HM Government of Gibraltar Command Paper 03/2018

Thank you very much for considering our comments and proposals on HM Government of
Gibraltar Command Paper 03/2018. The Command Paper is a very welcome step in the right
direction towards decriminalising and de-stigmatising abortion and we applaud HM
Government of Gibraltar for doing so, even without it having been an electoral mandate.
Content

Page 3 – Introduction

Page 4 - NMS Caretaker Committee

Page 5 – Evidence-Based Frameworks

Page 6 – Documents of Interest

Page 7 – 1. Time Limit for Abortions in Gibraltar

Page 8 – 2. No Time Limit for Fatal Foetal Abnormalities & Severe Foetal Abnormalities

Page 10 – 3. Service Provision

Page 12 – 4. Decriminalisation

Page 13 – 5. Mental Health Concerns

Page 14 – 6. Private Healthcare Practice

Page 15 - 7. Include Provision for Injury to Physical or Mental Wellbeing of Existing

Children

Page 16 - 8. Under 16 Year Olds

Page 17 – Conclusion & Summary

Introduction

“No More Shame” (NMS) Gibraltar was created primarily on the premise that we consider
abortion to be a healthcare right. To this end, we advocate for safe abortions within a
proper healthcare setting with the appropriate evidence-based information and support.
From a ‘shame’ point of view, NMS believes that nothing should be unspeakable.

NMS Gibraltar will continue its campaign beyond the legalising of abortion in Gibraltar to
endorse what HM Government outlines on pages 14-15 of the Command Paper (Beyond the
Law) and in so doing, support the Ministries of Health & Care and Social Services to achieve
these goals.

NMS Gibraltar hopes to register as an association in order to fulfil their commitment to this
important area of healthcare and gets its inspiration from the National Unplanned
Pregnancy Advisory Service (NUPAS) and British Pregnancy Advisory Service (BPAS). Links
below:

(a) NUPAS:
https://www.nupas.co.uk/

(b) BPAS:
https://www.bpas.org/

Gibraltar is one of the last nations in the modern Western world to legalise abortion. There
are many examples of good practice in delivering abortion services in Europe, some with
many years of experience based on clinical evidence. The social statistics surrounding easy
access to abortions within a comprehensive sexual health service indicate lower rates of
abortion, which is what NMS would like to see in Gibraltar. In fact, this is what is being
fought for with the modernisation of the UK law to accommodate Northern Ireland. To this
end, we encourage HM Government of Gibraltar to have an open mind and to research and
explore services that already exist in Europe, to ensure we learn from them so that Gibraltar
can continue to progress into a truly equal and civil society.
NMS Gibraltar’s ‘caretaker committee’ consists of healthcare professionals and activists,
we are:

Leanne Acris – activist

Nicole Banda – activist
Soraya Duarte – activist & Treasurer
Sonia Duarte Pisarello – activist
Isobel Ellul – activist & GHA Cancer Services Coordinator
Rachael Jackson - activist
Kayley Linares – activist & marketing designer
Dr Mark Lopez – activist & GHA NCHD
Charlotte Lowe – activist & GHA EN
Rosalina Oliva – activist & first Gibraltarian woman to speak publicly to the BBC about her
abortion
Selena Victory RGN – activist & GHA DN

In order to produce the following recommendations to HM Government of Gibraltar, NMS

has consulted with Consultant Gynaecologists/Obstetricians, Midwives, nurses, doctors,
lawyers, Lawyers for Choice UK, educators, care workers, women who have had abortions
and Rachael Clarke, Public Affairs & Advocacy Manager at BPAS, The Royal College of
Obstetricians & Gynaecologists (RCOG), Marge Berer, International Coordinator at
International Campaign for Women’s Rights to Safe Abortion (SAWR), Professor Fiona de
Londras & Mairead Enright at the University of Birmingham School of Law, Mara Clarke,
Abortion Support Network and generally with members of our community.

1 - NMS strongly recommends HM Government of Gibraltar consults with its GHA health
professionals from the Gynaecology, Obstetrics and Midwifery teams and consults the
documents linked in this paper.

Support for legal and safe abortion is set out very clearly by these three global
institutions:

(c) WHO:
http://www.who.int/reproductivehealth/topics/unsafe_abortion/en/

(d) UN:
https://news.un.org/en/story/2016/09/541212-repealing-anti-abortion-laws-would-save-
lives-nearly-50000-women-year-un

(e) Amnesty International:

https://www.amnesty.org/en/what-we-do/sexual-and-reproductive-rights/abortion-facts/
Evidence-Based Frameworks

The Command Paper indicates that the framework therein for abortion provision is based
on the UK 1967 Abortion Act. Current debate in the UK centres on the notion that this Act is
already outdated. For this reason, NMS believes we should be looking at Ireland’s proposed
new law:
(f) https://www.oireachtas.ie/en/bills/bill/2018/105/?tab=amendments
and the Isle of Man’s new, updated abortion laws and use this as consultation in designing a
law that is appropriate for Gibraltar’s women.

(g) BMJ:
https://blogs.bmj.com/bmj/2018/10/30/hayley-webb-uk-abortion-law-is-outdated-not-
evidence-based-and-prevents-best-practice/

(h) Ireland:
http://www.thejournal.ie/factcheck-uk-ireland-abortion-law-4027157-May2018/

(i) Northern Ireland:

https://londonirisharc.com/repeal-london/2018/2/24/5-ways-the-uk-is-violating-the-
human-rights-of-women-in-northern-ireland

(j) Isle of Man:

http://www.tynwald.org.im/business/bills/Bills/Abortion_Reform_Bill_2018_as_amended_
by_KEYS.PDF

The evidence-based guidelines NMS has researched to inform our opinions and
recommendations are from:

UK’s National Health Service (NHS), the UK’s Department of Health & Social Care (DH), the
British Medical Association (BMA), the General Medical Council (GMC), RCOG, the Royal
College of Midwives (RCM), PubMed, British Medical Journal (BMJ), the Family Planning
Association (FPA); the global organisations of the World Health Organization (WHO),
Amnesty International and the United Nations (UN); abortion services providers NUPAS and
BPAS.
Documents of Interest

(k) The Law & Ethics of Abortion, BMA (this document is a MUST read):
file:///C:/Users/user1/Downloads/The-law-and-ethics-of-abortion-updated-June-2017.pdf

(l) Abortion statistics 2017 from the DH:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/714183/2017_Abortion_Statistics_Commentary.pdf

(m) Failure rates of contraception, NHS:

https://www.nhs.uk/conditions/contraception/how-effective-contraception/

(n) Ethical guidance from GMC on providing for abortion:

https://www.gmc-uk.org/search-results?searchText=abortion

(o) FPA factsheet on abortion:

https://www.fpa.org.uk/factsheets/abortion

(p) WHO guidance, considered the official guidance (A must read):

https://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion-task-
shifting/en/

General Comment No.36 (2018): UN Human Rights Committee

NMS welcomes the United Nations Human Rights Committee’s General Comment on the
Right to Life, the language of which affirms that Abortion is a human right and that the right
to life begins at birth.

This critical advancement puts women’s health and rights to privacy at the top of human
rights conversations by requiring states to provide safe, legal and effective access to
abortion, including when the pregnancy presents a threat to the woman’s health or will
cause her substantial pain or suffering.

Additionally, states are required to remove existing barriers and policies which prevent
women and girls’ effective access to abortion, including those barriers created due to
conscientious objection.

2 - NMS calls on HM Government of Gibraltar to take into account this latest advancement
by ensuring that women and girls’ rights are in no way being infringed.

(q) UNHRC general comment:

https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_3
6_8785_E.pdf
 1. Time Limits for Abortions in Gibraltar

So far in GB, the whole basis for the timeframe in which an abortion can take place is based
on the medical evidence-based notion of viability. This defines the minimum age at which
the foetus can survive outside its mother’s womb, albeit with medical support. This figure
currently stands at 24 weeks, set by the UK Abortion Act over 50 years ago in 1967, but is
now an outdated notion as new legislation across Europe and now for Ireland is focused on
what women want, abortion without indication, up to 10/12/14 weeks. NMS agrees with
Government that this figure may have been overtaken by scientific advances since then and
that it can be lowered once the clinical evidence is there, but this negates the need for
choice and a service which supports women’s autonomy. What would be the outcome if a
woman, after 14 weeks gestation, suffered physical or mental illness caused, and shown to
be caused, by the pregnancy or the continuation of the pregnancy?

3 – In the absence of new clinical evidence to support the lowering of the limits, in the
Command Paper, to 10/12/14 weeks, NMS strongly recommends that abortion after 14
weeks should be allowed.

(r) Please see RCOG document about foetal awareness prior to 24 weeks, to put viability
argument in perspective:
https://www.rcog.org.uk/en/guidelines-research-services/guidelines/fetal-awareness---
review-of-research-and-recommendations-for-practice/
(s) Please see following document setting out why a 24 week limit should not be reduced:
https://www.bpas.org/media/1181/32-reasons-not-to-lower-the-abortion-time-limit-
briefing.doc
(t) BMA update on Viability and 28 weeks limit:
file:///C:/Users/user1/Downloads/Decriminalisation-of-Abortion-Discussion-Paper-
Update.pdf
(u) Viability definition BPAS:
https://www.bpas.org/get-involved/advocacy/briefings/premature-babies/
(v) Viability definition RCOG:
https://www.rcog.org.uk/en/guidelines-research-services/guidelines/sip41/
(w) Please find below Q&A on the abortion time limit from RCOG:
https://www.rcog.org.uk/en/news/campaigns-and-opinions/human-fertilisation-and-
embryology-bill/qa-the-abortion-time-limit/

4 - NMS proposes the time limit for abortion up to 14 weeks without indication and
involving risk to physical or mental health of woman up to 24 weeks.
 2. No Time Limit for Fatal Foetal Abnormalities (FFA) and Serious Foetal
Abnormalities (SFA)

(x) Please see information in this link:

https://www.nhs.uk/conditions/pregnancy-and-baby/screening-tests-abnormality-
pregnant/

Limits of 10/12/14 weeks are not compatible with a woman making an informed decision
based on FFA and SFA; we believe this to be unfair treatment of women and a negation of
basic human rights and freedom of personal choice who finds out their child will have a fatal
or severely life-limiting disability. However, NMS understands, from the body of the draft
Bill, and not the explanatory memorandum, that 10/12/14 weeks is limited to ‘injury to
physical or mental’ health and not the other grounds. Absolute clarity needs to be provided
that this is how it would actually work. For the sake of clarity:

2.1 The anomaly scan is a 20 weeks test for serious life-limiting abnormalities and those
incompatible with life, after which, women in Great Britain (GB) or Ireland may
choose to end the pregnancy based on informed medical opinion. A woman finding
out her child, which is a wanted pregnancy, has a fatal or serious anomaly at the 20
week scan in Gibraltar (e.g. anencephaly) should have this same option. Time for re-
testing and making decisions would be needed.

2.2 The Non Invasive Prenatal Test (NIPT) currently offered would not give sufficient
time for women to seek a legal abortion in two of the proposed time limits (this can
only be administered from 10 weeks and currently can take up to two weeks for a
result). This renders a 10 or 12 week abortion limit for medical reasons useless. Even
the 14 week limit is unhelpful because women are often advised to have follow-up
testing in the case of a positive result and would at best force women into rushing
into a decision early, purely to comply with time constraints. We therefore do not
see how such early limits would actually leave women with a prenatal diagnosis of
SFA any choice at all, as the proposed changes would not allow them to make a
heartbreaking, but ultimately compassionate, choice for their child.

For clarity, there should be no time-limit for termination for both fatal and serious foetal
abnormality (around 1% of abortions), the same as GB, so that a woman finding out the
foetus is affected at her 20 week screening could subsequently make together an informed
clinical and evidence-based decision to terminate on those grounds. To impose a time limit
would push a woman/couple who finds out a diagnosis very close to the limit, to make a
decision that may not be right for them. It would also place an impossible burden and
responsibility on the medical staff and woman of whether to abort in clear breach of the
law; these are clinical decisions made in good faith. This is not an academic situation which
we pose, but one which doctors and hospital staff are regularly faced with.

While NMS urges that processes are put in place to facilitate an abortion at the earliest
possible opportunity, the law should provide for every eventuality. All women need to
access care regardless of gestation period; no woman should see herself falling through the
healthcare net as a result of different cut-off dates in the gestation period.

NMS is concerned whether the intention of limiting legal abortions to 10/12/14 weeks
gestation in the Command Paper is so that abortions after this period (for SFA and FFA
pregnancies), will continue to be offered, but only as a ‘second opinion’ in a tertiary hospital
in the UK?
Please note: this goes against both the Northern Ireland ruling and the GHA’s repatriation
policy and giving the patient a choice to have her treatment offered in the GHA, where it
would be possible.

5 – NMS recommends there should be no time-limit for termination for both fatal and
serious foetal abnormality, as in GB, offered in Gibraltar in keeping with the Northern
Ireland ruling and GHA repatriation policy.

(y) UN Committee on the Elimination of Discrimination Against Women (CEDAW) report on

violation of human rights of women in Northern Ireland; please see point 5:

https://londonirisharc.com/repeal-london/2018/2/24/5-ways-the-uk-is-violating-the-
human-rights-of-women-in-northern-ireland
 3. Service Provision

3.1 NMS believes that when supporting the reasons to have an abortion, the use of the
HSA1 form should be replaced by an appropriate Consent Form, up until 14 weeks
gestation. Please see below for an example of an appropriate Consent Form. This
ensures the woman is giving ‘informed consent’ to the treatment and is not being
coerced, she understands the risks, on a par with any other medical intervention and
to highlight whether she needs counselling.

(z) Draft Consent Form for an Abortion:

http://abortiondocs.org/wp-content/uploads/2012/10/Cherry-Hill-Womens-Consent-
Forms.pdf

3.2 However, NMS believes: a) it should only require the consent of one doctor (or
specialist nurse) and not two, as proposed in Ireland; b) the decision to terminate
should ultimately rest with the woman, with the professional support and care of
suitably qualified medical/nursing professionals.

6 – NMS recommends that up to 14 weeks, only one doctor or specialist nurse is required to
prescribe an abortion, without indication but signing with consent, as proposed in Ireland.

3.3 Who would be able to prescribe the medical ‘abortion’ pill? Will this include all GHA
doctors or just the Consultant Gynaecologists or Well Person Unit (WPU) GP? All
qualified doctors should be allowed to prescribe an abortion in primary or secondary
care; limiting this to a hospital setting only would be stigmatising.

7 - NMS recommends that, all registered GPs, Gynaecologists and specialist nurses should
be allowed to prescribe an abortion, in primary or secondary care.

3.4 Taking into account ‘conscientious objectors’, it must be made clear that another
doctor will be assigned to the patient through a seamless referral system.

8 - ‘Conscientious objectors’ must ensure that another doctor who does not object will be
swiftly and with minimum bureaucracy, assigned to the patient through a seamless referral
system.
(za) Regarding ‘conscientious objectors’, the RCM clearly defines the duty of care of its
midwives towards women undertaking/having undertaken an abortion:

https://www.rcm.org.uk/sites/default/files/RCM%20Abortion%20Statement.pdf

(Please copy & paste this link in to browser search, as clicking the link does not work. This is
not a virus link)

3.5 We understand that some individuals, who oppose the provision for abortion,
attended the private clinic in Algeciras, Spain, and ‘interfered’ with the privacy of
Gibraltar women obtaining abortions there. Can HM Government of Gibraltar
reassure NMS that any GHA abortion service will not be signposted in a dedicated
clinic, so it is identified as such; if this cannot be avoided due to logistics:

9 - NMS recommends a safe ‘buffer zone’ (confirmed as HRA/ECHR compliant) be imposed

to ensure that women attending for an abortion are not shamed by those who would
oppose it, when using this healthcare service.
 4. Decriminalisation

NMS seeks further clarity on issues of ‘criminalisation’ of abortions around the proposed
nebulous timeframes. NMS believes residual criminalisation of abortion needs to be
removed. For Section 162 (1), NMS recommend the penalty should be reduced to 12
months and in Section 162 (2), NMS recommend the same penalty as for medical
malpractice.
NMS asks if women travelling abroad, seeking an abortion, are breaking the law, even if
they are in another jurisdiction. NMS recommends this be decriminalised too.

We cannot help but draw parallels between Ireland and Gibraltar and provide below a link
to a “Position Paper on The Updated General Scheme of the Health (Regulation of
Termination of Pregnancy) Bill 2018”.

NMS urges HM Government of Gibraltar to look through the full Position Paper, especially
the section on Decriminalisation, as an advisory piece and take note on how it could be
applicable to Gibraltar. Decriminalisation should not however be deregulation, as per
professional medical regulatory bodies.

(zb) A link to the full Position Paper can be found below:

https://lawyers4choice.ie/
(zc) The Isle of Man is also seeking advice on decriminalisation from the BMJ:
https://www.bmj.com/company/newsroom/use-evidence-to-inform-isle-of-man-draft-
abortion-bill-debate-urge-researchers/
(zd) BMA decriminalisation of abortion:
file:///C:/Users/user1/Downloads/BMA-2017-decriminalisation-of-abortion-discussion-
paper%20(2).pdf
(ze) UNHCR:
https://www.reproductiverights.org/press-room/un-committee-asserts-that-access-to-
abortion-and-prevention-of-maternal-death-are-human-rights
(zf) BPAS on decriminalisation:
https://www.bpas.org/get-involved/campaigns/briefings/10-reasons-to-decriminalise-
abortion/

10 - NMS recommends the decriminalisation of abortion in Gibraltar. Section 162 (1) should
carry a reduced penalty of 12 months and Section 162 (2) should carry the same penalty as
for medical malpractice.

11 – NMS recommends that women who travel abroad to seek an abortion not be
criminalised.
 5. Mental Health Concerns

NMS fundamentally believes the proposed measures do not go far enough to give women
full choice about their bodies and their futures, specifically in the Command Paper’s (page
11) implication that rape and incest are the gold standard for a “risk to her mental health”, if
the Explanatory Memorandum is to be taken literally. For clarification, this should not be
the standard women should be held to when seeking an abortion for their own mental
wellbeing. We hope there may not be such a high threshold in practice and hold concerns
that specific health professionals may use this bar to actively discourage or simply refuse to
“sign off” on an abortion.

NMS cannot emphasise enough for abortions being allowed where a woman may suffer for
social or economic reasons and not just in cases of rape or incest. The Command Paper is
following UK legislation on this point that was created in 1967, over 50 years ago, when
education and social and moral standards were very different. Such limitation to rape or
incest is objectionable and indeed, condescending and even degrading in our time and an
enlightened new law should allow abortion where a woman is at risk of suffering serious
problems and is medically certified, in good faith, as such if the pregnancy continues to
term.

NMS Gibraltar represents the de-stigmatising and no more shaming of women seeking an
abortion. This includes the non-judgement of women seeking abortions who may suffer due
to their social or economic circumstances. We want to stress that no woman lightly
contemplates the termination of her pregnancy, for whatever reason. For this reason, as
mentioned above, up to 14 weeks gestation, abortion should be offered without indication,
but with medical support.

12 - NMS do not accept, as per page 14 of the Command Paper, for women to seek advice
through social services care as this is an obstruction to access, as per WHO Safe Abortion
Guidelines.

(zg) Please see page 16 of following document on ‘the doctor’s discretion’:

http://www.reproductivereview.org/images/uploads/Britains_abortion_law.pdf

(zh) PubMed on women’s emotions over aborting:

https://www.ncbi.nlm.nih.gov/pubmed/24020773/
 6. Private Healthcare Practice

A specific issue raised by some abortion patients is the mistrust of private practitioners in
the abortion process. The need for abortions to go through the GHA is understood,
however, in a process which is meant to be respecting rights of the individual, it casts an
inevitable suspicion that a woman who might wish to see her trusted private GP of ten years
(and who knows her history better than anyone) for a referral, is only doing so for nefarious
reasons. On a purely practical level, this appears to seek to discourage women from seeking
help simply by reducing their options and access to care. There are many residents of
Gibraltar who only access private healthcare and are not registered with the GHA and
should be able to access legal and safe abortions.

Furthermore, with the understandable introduction in law of conscientious objectors in

Gibraltar, there will be ‘known’ GHA GPs who will prescribe abortions and it may become
difficult to access them due to busy clinics. Therefore, allowing their private healthcare
counterparts to prescribe medical abortions may ease the pressure on the GHA.
Additionally, some GHA doctors also hold private clinics; will they be allowed to refer to the
service from their private consultations?

The option of seeking a private GP should be allowed to cover these circumstances. For
these reasons:

13 - NMS calls on HM Government of Gibraltar to allow registered, regulated, established

private healthcare practitioners to offer abortions, in compliance with the amended Crimes
Act 2011 of Gibraltar.
 7. Include Provision for Injury to Physical or Mental Health of Existing Children

NMS notes there is no provision in the draft amendment of the Crimes Act 2011 for: “injury
to the physical or mental health of any existing children of the family of the pregnant
woman” as provided for in the UK 1967 Abortion Act, section 1 (1) (a).

After consultation with those who offer children and family services and educationalists, this
abortion provision ensures the protection and safe-guarding of vulnerable families who are
looked after by the Care Agency. It also ensures the protection of existing children with
learning difficulties and/or disabilities who may be affected. Siblings with mental health
issues, chronic diseases or the terminally ill could also suffer; not to mention multiple
existing children in a household facing socio-economic problems…the possible scenarios are
many, varied and complex.

14 - NMS request that this clause be also included in the amended Crimes Act 2011.
 8. Under 16 year olds

The GHA’s new Well Person Unit (WPU) has rightly announced, as per Fraser Guidelines and
Gillick Competencies, it will accept under-16 year old patients for sexual health advice and
protect their anonymity and keep confidentiality. NMS understands that the legal age of
sexual consent is set at 16, but is also aware that minors are sexually active and know of
under 16 year old girls who have had abortions in Spain. Minors are entitled to make
medical decisions without their parents.

15 - As per the proposed Irish Law, the new Gibraltar legislation should make it clear that
there are no special requirements or procedures reference minors; ordinary law of consent
should apply.
Conclusion and Summary

In conclusion, the recommendations of NMS are:

1. NMS strongly recommends HM Government of Gibraltar consults with its GHA

health professionals from the Gynaecology, Obstetrics and midwifery teams and
consults the documents linked in this paper.

2. NMS calls on HM Government of Gibraltar to take into account the latest

advancement of the UNHCR’s General Comment by ensuring that women and girls’
rights are in no way being infringed.

3. In the absence of new clinical evidence to support the lowering of the limits, in the
Command Paper, to 10/12/14 weeks, NMS strongly recommends that abortion after
14 weeks should be allowed.

4. NMS proposes the time limit for abortion up to 14 weeks without indication and
involving risk to physical or mental health of woman up to 24 weeks.

5. NMS recommends there should be no time-limit for termination for both fatal and
serious foetal abnormality, as in GB, and offered in Gibraltar in keeping with the
Northern Ireland ruling and GHA repatriation policy.

6. NMS recommends that up to 14 weeks, only one doctor or specialist nurse is

required to offer an abortion, without indication but signing with consent, as
proposed in Ireland.

7. NMS recommends that all registered GPs, Gynaecologists and specialist nurses
should be allowed to offer an abortion, in primary or secondary care.

8. ‘Conscientious objectors’ must ensure that another doctor who does not object will
be swiftly and with minimum bureaucracy, assigned to the patient through a
seamless referral system.

9. NMS recommends a safe ‘buffer zone’ (confirmed as HRA/ECHR compliant) be

imposed to ensure that women attending for an abortion are not shamed by those
who would oppose it, when using this healthcare service.

10. NMS recommends the decriminalisation of abortion in Gibraltar. Section 162 (1)
should carry a reduced penalty of 12 months and Section 162 (2) should carry the
same penalty as for medical malpractice.
11. NMS recommends that women who travel abroad to seek an abortion not be
criminalised.

12. NMS do not accept, as per page 14 of the Command Paper, for women to seek
advice through social services care as this is an obstruction to access, as per WHO
Safe Abortion Guidelines.

13. NMS calls on HM Government of Gibraltar to allow registered, regulated, established

private healthcare practitioners to offer abortions, in compliance with the amended
Crimes Act 2011 of Gibraltar.

14. As per UK legislation, injury to the physical or mental health of any existing children
of the family of the pregnant woman should also be included as criteria for an
abortion. NMS request this clause be included in the amended Crimes Act 2011.

15. As per the proposed Irish Law, the new Gibraltar legislation should make it clear that
there are no special requirements or procedures reference minors; ordinary law of
consent should apply.